Oct. 11, 2013 – In a case involving a police officer who ran a red light, causing an accident, the Wisconsin Supreme Court could decide how far governmental immunity goes to protect police departments and officers from liability for injuries.

In Legue v. City of Racine, 2012AP2499 (Oct. 2, 2013), a state appeals court certified the case to the supreme court, asking whether governmental immunity applies “when someone is injured because an officer proceeds against a traffic signal. …”

Wis. Stat. section 346.03(2)(b) and (3) allow police officers to disobey stop signs and red lights to respond to emergencies or pursue suspects, so long as they slow the vehicle “as may be necessary for safe operation” and activate lights and sirens.

However, section 346.03(5) creates a “duty to drive or ride with due regard under the circumstances for the safety of all persons” and does not protect officers from the consequences of driving with “reckless disregard for the safety of others.”

Under this legal backdrop, on a summer night in 2009, Racine Police Officer Amy Matson responded to a car accident. Speeding with lights and sirens engaged, she approached an intersection, and slowed down to 27 mph before running a red light.

At that moment, Eileen Legue entered the intersection on a green light. She did not see the police car’s lights, and did not hear the sirens because of music playing in her car. The vehicles collided, and both Matson and Legue sustained injuries from the crash.

Legue sued Matson and the City of Racine, which invoked the governmental immunity defense under Wis. Stat. section 893.80(4). That provision insulates government actors from liability for acts “done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.” However, there are limitations and exceptions at play.

“[G]enerally speaking, the discretionary decision to violate the rules of the road during an emergency response is immune from suit,” the certification states.

“At the same time, however, we are informed that the officer’s manner of operating the vehicle outside the context of the discretionary decision does not qualify for immunity.”

The appeals court noted that officers can be liable for negligent driving that exceeds the mere discretionary decision to violate the rules of the road as necessary.

The court noted a recent case, Brown v. Acuity, in which the Wisconsin Supreme Court ruled that a volunteer firefighter was liable for injuries he caused when he ran a red light. In that case, the firefighter did not trigger any audible signals as required by law.

Here, though, Matson satisfied her ministerial duty to slow down before proceeding, and activated visual and audible signals to alert other motorists of her presence as required.

“However, liability depends on a question left open by Brown: does immunity apply if an officer’s manner of proceeding against a traffic signal fulfills the ministerial duties … but arguably violates the duty to operate the vehicle ‘with due regard under the circumstances?’”

Legue argues that immunity does not extend to an officer’s “manner of entering the intersection,” even if the officer met requirements to signal other drivers and slow down.

Racine argues that the “manner of entering an intersection” is inherently protected, absent ministerial duty violations, just as the decision to run the red light is protected.

“The ramifications of this decision are huge,” the appeals court noted. “If the answer is that immunity for the manner of entering the intersection is subject to the ‘due regard’ condition, then immunity is, we submit, just an empty shell if an accident results.”